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Publication date: 07.05.2024
active and purposeful military lawyer with more than 4 years of experience
About the rights of parents to additional paid leave if they have two or more children under the age of 15
QUESTION
Is a father entitled to additional paid leave if he has two or more children under the age of 15, provided that the mother of the children is on leave to care for the child until the child reaches the age of 3 and has not used the right to this additional leave?
ANSWER
Citizens of Ukraine who are in labor relations with enterprises, institutions, organizations, regardless of the form of ownership, type of activity and industry affiliation, and also work under an employment contract with a natural person, have the right to vacation.
Pursuant to Article 182-1 of the Code of Labor Laws of Ukraine (hereinafter referred to as the Labor Code of Ukraine) and Article 19 of the Law of Ukraine of November 15, 1996 No. 504/96-VR "On Vacations" (hereinafter referred to as Law No. 504), one of the parents who has two or more children under the age of 15, or a child with a disability, or who adopted a child, a mother (father) of a person with a disability from childhood of subgroup A I group, a single mother, a father of a child or a person with a disability from childhood subgroup A I group, who brings them up without a mother (including in the case of a long-term stay of the mother in a medical institution), as well as a person who took care of a child or a person with a disability from childhood of the subgroup A of the I group, or one of the adoptive parents, is granted annual additional paid leave of 10 calendar days, excluding holidays and non-working days (Article 73 of the Labor Code).
If there are several reasons for granting this leave, its total duration cannot exceed 17 calendar days.Since Article 19 of Law No. 504 does not clearly define the set of several grounds for acquiring the right to additional social leave lasting more than 10 calendar days, then, according to the letter of the Ministry of Labor and Social Policy of Ukraine dated July 21, 2010 No. 215/13/116-10 " On additional social leave" a legal examination of this issue was carried out, as a result of which it was recognized as legitimate to consider each ground defined by the first part of this article as a separate ground.
Additional vacations to employees who have children are granted beyond the duration of annual vacation provided for in Articles 6, 7, and 8 of Law No. 504, as well as beyond the duration of annual vacations established by other laws and regulations, and are transferred to another period or extended in accordance with , defined by Article 11 of Law No. 504.
The period for which leave is granted is a calendar year, not a working year. This distinguishes it from annual vacations. In this case, the right to such a full-time vacation arises regardless of the time worked, from January 1 of the new year. If it is not used, it accumulates every January 1.
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However, only one of the parents can take advantage of the additional social leave. Who exactly - they choose independently.
Yes, the employer must be provided with any duly executed and certified document in the prescribed manner, in which it is confirmed with sufficient reliability that the other parent of the children was not granted such a social leave.
Such a document is a certificate from the place of work of the second parent, which states that the employee did not use additional leave. But if the employee cannot provide such a certificate for objective reasons (the other spouse is unemployed, a private entrepreneur, etc.), then the relevant documents can be:
• a copy of the work book;
• extract from the electronic work book from the PFU electronic services portal;
• data on work and insurance experience from the register of insured persons of the State register of mandatory state social insurance of the PFU;
• certificate from the employment center;
• a certificate of employment in entrepreneurial activities, etc. (clarification of the Ministry of Economy in letters dated July 1, 2021 No. 4712-06/34401-07, dated August 10, 2021 No. 4712-06/40797-07 and dated August 10, 2021 No. 4712- 06/40796-07).
Additional social leave is not divided into parts, that is, all 10 calendar days are granted at once. The exception is persons who have two reasons for granting such a leave at once. Then they can divide it by 10 + 7 (letter of the Ministry of Social Policy dated May 12, 2015 No. 256/13/116-15).
The recipient of leave does not necessarily have to work now.This means that, for example, a woman who has not worked a single day during the year, for example, was on maternity leave to take care of a child until she reached the age of 3, has the right to vacation. Also, a mother who is on such maternity leave can transfer the right to parental leave to the father.
Pay attention! These norms are not about husband and wife, but about mother and father, that is, parents do not necessarily have to be married. If the father goes on child leave, the mother loses her right to it for the corresponding year.
We also note that the legislation does not provide for a statute of limitations, after which the right to additional social leave is lost for employees who have children. Therefore, if the employee for some reason did not use this right and did not use this leave for the past year or for several previous years, he has the right to use this leave, and in case of dismissal, regardless of the reasons, he must be paid compensation for all unused vacation days, in accordance with Article 24 of Law No. 504.
In accordance with paragraph 2 of Article 12 of the Law of Ukraine dated March 15, 2022 No. 2136 "On the Organization of Labor Relations in the Conditions of Martial Law", during the period of martial law, the employer may deny the employee any type of leave (except leave in connection with pregnancy and childbirth and leave to take care of a child until it reaches the age of three), if such an employee is involved in the performance of work at critical infrastructure facilities.
